MAYA KISHORE MOHNANI Vs. THAKURDAS KHANCHAND CHAWLA

JUDGEMENT

(1.) THE suit as filed is based on the bill of exchange dated 22. 5. 1996. The suit was lodged on 22. 11. 1999. Defendant No. 1 is sued as drawer of the bill and defendant No. 2 as acceptor. The drawer has waived notice of dishonour. The case of the plaintiff is that though the amount was demanded the defendants have failed and neglected to pay the amount or part thereof and consequently the suit. Defendant No. 1 has expired. His Legal heirs are not brought on record, though defendant No. 2 is one of the L. Rs. Summons for Judgment, therefore, to be heard and disposed of insofar as defendant No. 2 alone is concerned. In answer to the Summons for Judgment, no reply has been filed on behalf of the defendants. Learned Counsel for the defendant, however, contends that they are entitled to unconditional leave to defend the suit based on the pleadings itself as the suit is filed beyond the prescribed period of limitation. This is a case of a bill of exchange payable on demand. On the other hand, on behalf of the plaintiff, it is contended that the Receiver was appointed by order dated 25. 9. 1996 in Arbitration Petition (Lodging) No. 256 of 1996. That was in a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996. It is contended that the period when the Receiver came to be appointed and till he was discharged, has to be excluded. Interim relief was granted in terms of Prayer Clause (a ). Pending Receiver taking possession, ad interim relief was granted in terms of Prayer Clause (b ). On instructions, learned Counsel for the plaintiff states that interim relief was vacated on 15. 3. 2001. The present suit was filed on 22. 11. 1999. The suit was originally filed by the Court Receiver. Subsequent to discharge of the Court Receiver, plaintiff has been substituted by an order dated 9. 1. 2002.

(2.) UNDER Article 35 of the schedule to the Limitation Act, limitation in respect of filing of the suit on a bill of exchange or promissory note payable on demand and not accompanied by any writing, restraining or postponing the right to sue is three years from the date of Bill or note. If the date on the Bill which is 22. 5. 1996, is taken, prima facie the suit filed on 22. 11. 99 would be barred by limitation. It is, however, argued on behalf of the plaintiffs that they are entitled to exclusion of time the receiver was first appointed till discharge. This submission is based on Section 1. 5 of the Limitation Act. Section 15 reads as under :

(3.) IT is firstly contended relying on the judgment of this Court in v. C. I. C. I. Ltd. v. Alpine Industries Ltd. and Ors. , 1999 (3) Bom. C. R. 771, that once the Receiver is appointed for the partnership property, the partners of the partnership would be prohibited from dealing with the property. In that case, the issue was whether the provisions of Sections 16 and 22 of the S. I. C. (Special Provisions) Act would apply. The Receiver had been appointed before the proceedings were registered against the company before B. I. F. R. However, before possession could be taken, proceedings were registered. The question was whether the Court after registration of the proceedings would have jurisdiction to proceed with the matter. It is in these circumstances that the issue was considered whether the property was custodia legis. The finding was recorded that untill property was taken possession by the Receiver, it would not be custodia legis. It would only be on possession being taken. It is in that context that it was observed that though Receiver has been appointed, the defendants therein who are parties to the proceedings were prohibited from dealing with the property. The next judgment cited is in the case of Siraj-ul-Haq Khan and Ors. v. The Sunni Central Board of Waqf, U. P. and Ors. , AIR 1959 Supreme Court 198. In that case, the issue pertained to properties of a Waqf and one of the issues was whether the period of limitation in filing the suit could be excluded on account of injunction and order. While answering the question, the Apex Court observed as under :